The Supreme Court yesterday handed down judgment in KO (Nigeria) and others v SSHD, a case which involves the assessment of whether it would be reasonable to expect a British child (or a settled child / one who has lived in the UK for 7 years) to leave the UK. The children to whom the decision relate will be referred to as ‘qualifying children’ below.
The case considers the Immigration Rules relating to whether it would be reasonable for a non-British child who has lived in the UK for 7 years to leave the UK (paragraph 276ADE(1)(iv)), and also considers statutory public interest considerations contained in Part 5A Nationality, Immigration and Asylum Act 2002 (as amended by the Immigration Act 2014). The public interest considerations mirror the Immigration Rules in many respects, and also provide for a non-British parent to remain in the UK with their child(ren) if it would be unreasonable to expect their qualifying children to leave the UK.
The Supreme Court made the following important findings which should be borne in mind by those considering an application to the Home Office:
- Under the Immigration Rules, when considering whether it would be reasonable for a child who has lived in the UK for 7 years to leave the UK, there is no requirement to consider the criminality or misconduct of the child’s parent. If it can be demonstrated that the child has lived continuously in the UK for 7 years, the sole question must be what is reasonable for the child, but that must be viewed in the context of that child’s family life. If it would be unreasonable for the child to leave the UK, regardless of the child’s parents’ criminality or misconduct, the child should be granted leave to remain.
- If it can be demonstrated that it would be unreasonable for a qualifying child to leave the UK, a parent (who is not facing deportation due to criminality) should also be granted leave to remain in the UK if it can be shown that the parent shares a genuine and subsisting parental relationship with the child. The parent does not necessarily need to be the child’s primary carer.
- In our experience, the Home Office often concludes that, if the child’s parents will be leaving the UK with the child (i.e. if the family will be removed from the UK together), it can be reasonable for a qualifying child (or a child who has lived in the UK for 7 years) to leave the UK. The Supreme Court notes that it is relevant to consider where the parents are expected to be, as it will normally be reasonable for the child to be with them; however, if it would not be reasonable for the child to leave the UK with them, the child/parents should be granted leave to remain.
- With reference to deportation cases, the court confirms that a higher hurdle applies when considering an Applicant’s relationship with their children. Current Immigration Rules confirm that, in order to avoid deportation by relying on a relationship with a child, it must be shown that it would be unduly harsh for the child to remain in the UK without the Applicant, or to join the parent overseas. The Supreme Court has concluded that, when determining whether unduly harsh circumstances exist, the severity of the parent’s offence is not relevant; the assessment must be made solely based on the child’s best interests.
To conclude, it is extremely important to provide as much evidence as possible to demonstrate the strength of your child’s life and ties in the UK, and the reasons why it would be unreasonable/unduly harsh for them to leave.Latitude Law can assist with the preparation and submissions of applications involving children and can also assist with appeals involving the best interests of children.
If you would like to discuss your immigration case with one of our experts, call us on 0161 234 6800 (Manchester and London) or 0151 305 9600 (Liverpool).